While being fashionably late to a party may give the impression that one is a busy and popular person that was held up with other business, being fashionably late in federal contracting will typically have dire consequences.
However, a recent GAO bid protest decision demonstrates that when providing completed past performance questionnaires, or PPQs, being fashionably late may be acceptable – at least when the references were submitted directly by government officials, rather than the offeror.
In a prolonged GAO bid protest, The Arcanum Group, Inc., B-413682.4, B-413682.5 (Aug. 14, 2017), GAO denied a protest challenging, in part, the agency’s acceptance and evaluation of PPQs received after the due date for receipt of proposals.
The protest involved the GSA’s award of a contract to MIRACORP, Inc., to provide administrative and technical support services. The Arcanum Group, Inc., an unsuccessful competitor, filed two prior GAO bid protests, both of which were resolved in TAG’s favor. When the agency affirmed MIRACORP as the awardee once again, TAG filed a third protest. Unfortunately for TAG, the third time was not the charm.
In its third protest, TAG argued, in part, the agency’s new evaluation of proposals under the past performance evaluation factor was flawed for many reasons, including that MIRACORP’s PPQs were received late and the agency improperly considered them in evaluating proposals. Specifically, MIRACORP’s references submitted its PPQs one day and four days after proposals were due, respectively. TAG argued that the solicitation required offerors to submit PPQs by the due date for proposals, and that the agency had erred by considering the late PPQs.
By way of background, FAR 15.304(c)(3)(i) requires a procuring agency to evaluate past performance in all source selections for negotiated competitive acquisitions expected to exceed the simplified acquisition threshold. PPQs are one popular means of obtaining past performance information. A PPQ is a form given to a contracting officer or other official familiar with a particular offeror’s performance on a prior project. The reference in question is supposed to complete the PPQ and return it–either to the offeror (for inclusion in the proposal) or directly to the procuring agency.
In this case, GAO drew a distinction between an offeror submitting PPQs late and an outside reference responding late with PPQs. “[W]e note this is not an instance where an offeror has submitted its proposal (or some part thereof) after the closing time for receipt of proposals,” GAO wrote. Had the late PPQs come from MIRACORP, it would have been “improper” for the agency to consider them. But here, “the agency received the PPQs, not from MIRACORP, but from the references that were included in MIRACORP’s proposal, and the PPQs were received prior to the start of proposal evaluation.”
GAO noted that the solicitation “did not specifically state that the agency would not consider PPQs received after the closing date.” However, the solicitation allowed the government to contact references to obtain past performance information during the course of the evaluation. “Given that the agency could have sought out this information,” GAO wrote, “we find the agency’s decision to consider this information was within its discretion, and we find nothing improper with the agency’s evaluation.”
We have previously written about the need for a FAR update to prohibit procuring officials from requiring that offerors be responsible for obtaining completed PPQs. Such a requirement can be very unfair to offerors who have no ability to force references to timely complete those forms.
The Arcanum Group provides a little potential relief for offerors, in that it affords the agency the discretion to not penalize an offeror whose outside references submit PPQs late. It’s important, though, not to read too much into GAO’s decision. GAO didn’t hold that agencies must consider late PPQs from outside sources, only that–in appropriate circumstances–an agency may consider such PPQs. And, of course, GAO confirmed that if the solicitation instructions call for the offeror to include PPQs in the proposal, an offeror who receives those PPQs late is probably out of luck.